“Keep faith in us and in the system”, said an irate Court to Father Stan Swamy’s counsel earlier this year, while taking objection to a piece written by one of the junior counsel appearing in the case. This was nearly a month after Swamy had moved the Bombay High Court seeking bail. He was an octogenarian suffering from Parkinson’s, recovering from COVID-19, could hardly hear and needed assistance even to walk about. He had thus sought bail on these medical grounds.

We were to keep faith; after all, no less than the Supreme Court had told us in the past that our Courts are “sentinel on the qui vive”, “guardians of our liberties” and “the last resort for the oppressed and bewildered.” The system may be slow (it took Father Stan a month and numerous petitions before he was given a straw, a sipper and some warm clothes), but we are to keep faith.

A month later, the Bombay High Court has told us that “despite their best efforts,” Father Stan Swamy could not be saved.

During this one month, Fr. Stan Swamy had told the Court that he was being treated by unqualified persons in jail, that he could no longer “eat, write, bathe or go for a walk by himself,” and that he did not want another round of hospitalization – a set up that he was much familiar with and that he would “rather suffer, possibly die very shortly if this were to go on”.

A week later, the Court directed that he be shifted to a private hospital for treatment in view of his deteriorating health, but refused bail to the crippled 84-year-old, presumably because the interests of the community outweighed his basic rights.

A few days back, Fr. Swamy had filed a petition challenging Section 43D(5) of the Unlawful Activities Prevention Act (UAPA), pointing out that it was an insurmountable condition for bail. He did not, however, live long enough to see the case being decided; on the last hearing, the Court had adjourned the matter to July 6 for want of time.

If these were the “best of efforts” that the Court could take to protect the life of a crippled 84-year-old, the only faith we can repose in the system is a blind one – of the bhakti variety that Dr. BR Ambedkar had warned us about.

We can talk about the misuse of the UAPA and the executive excesses. But let us for a moment keep that aside. After all, the executive is famous for its potential to be dangerous.

Let us talk about how the institution that is to be the watchdog of our liberties failed at crucial moments. Let us talk about how our Article 21 jurisprudence is only rhetorical. Let us talk about how the basic rules of bail came to be consciously disregarded.

Finally, let us talk about omission. There is no suggestion that courts have actively caused the death of Stan Swamy, but the courts did nothing to prevent his death.

Much like Gibbons and Proctor, who were convicted for neglecting to take care of their child, Stan Swamy’s death leaves the courts guilty for failure to act on time. As we mourn the death of Fr. Stan Swamy, let us also celebrate the birth of blind faith in our institutions.

Mahesh Menon is an Assistant Professor, School of Law, SAI University.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.